Flashcards in Real property Deck (195)
Implied equitable servitude - 2 elements
1. When sales began - subdivider had general scheme of residential development which included this lot.
2. Lot holder had notice of promise contained in all prior deeds.
Notice - 3 types
Potentially "imputed to D":
Actual - literal knowledge
Inquiry - neighborhood appears to conform to common restriction
Record - publicly recorded docs (*NY* he does not have record notice of prior deeds themselves)
ADVERSE POSSESSION - concept
"Possession for a statutorily prescribed period can, subject to conditions, RIPEN into title."
AP - 4 elements
Open and notorious
Does possessor's subjective state of mind matter?
NY: Must have mistaken "good faith belief" that land is his. If he knows he is occupying 3rdP land - no AP!!!!
Tacking - including predecessor's possession time for SoL?
When there is privity - any non-hostile nexus. Not when there has been an ouster.
True owner afflicted by disability at INCEPTION OF AP
SoL doesn't run.
(N/A if afflicted after inception of AP)
REAL ESTATE CONVEYANCE
Closing - deed becomes operative document.
Contract - SoF requirements
Signed by D
State some consideration
If actual size is less than size in K?
Pro rata reduction in purchase price
Exception to SoF in land Ks
"Doctrine of part performance"
Two of three --> specific performance for oral contract:
1. B takes physical possession
2. B pays all or part of price
3. B makes substantial improvement
Risk of loss in K?
MBE: Equitable conversion - "equity regards as done that which ought to be done". Therefore, BUYER bears risk of land destruction after contract.
*NY* So long as buyer is without fault, risk of loss remains with SELLER until buyer has title or takes possession.
Two implied promises in every land contract
To provide marketable title
Not to make any false statements of material fact
Marketable title is
Title free from reasonable doubt, free from law suits and the threat of litigation
3 circumstances which render title UNmarketable
Adverse Possession --> No "good record title"
Encumbrances --> No unencumbered fee simple
If the property violates an applicable zoning ordinance
General disclaimer of liability in K?
Does not excuse seller from liability for fraud or failure to disclose.
Contract contains implied warranties of fitness or habitability?
Nope! Buyer beware.
EXC: Implied warranty of fitness and workmanlike construction in sale of a new home by a builder-vendor.
DEED: Requirements for passing legal title
Lawfully executed and delivered
Lawful execution of deed?
Signed by Grantor.
Doesn't need consideration.
Unambiguous description of land (doesn't need to be perfect)
Lawful delivery of deed?
Grantor physically or manually transfers the deed the grantee.
Can use mail, an agent or a messenger.
Test present intent: Did grantor have the present intent to be immediately bound, irrespective of whether or not the deed itself has been literally handed over.
Express rejection of the deed: defeats delivery
Delivery with oral condition?
Oral condition void.
Delivery via escrow, seller dies before condition is met?
Still valid delivery.
3 types of deed
General warranty deed (best)
Statutory special warranty deed (NY: "Bargain and Sale Deed")
No covenants, no promise that seller has title!
(And contract is no longer effective post-closing!)
General warranty deed
Warrants against all defects in title, including predecessors.
6 typical covenants in general warranty deed
Seisin - he owns
Right to convey
Quiet enjoyment (re title)
Covenant of warranty (will defend)
Further assurances (will perfect title if turns out to be imperfect)
When does SoL start to run on deed covenants?
Present covenants: On delivery.
Future covenants: On breach.
Statutory special warranty deed
*NY* "Bargain and Sale Deed"
Grantor has not conveyed to anyone else
Free from encumbrances by grantor
(No reps re predecessors)
Two different jurisdictions